Difference Between Necessity and Private Defence
QUESTION
Often in practice, necessity and private defence has always been confused. Discuss the fundamental differences between the two.
DISCUSSION
The two grounds of justification known as necessity and private defence are closely related. In both cases the perpetrator protects interests which are of value to her, such as life, physical integrity and property, against threatening danger. The distinctions between these two grounds of justification are the following (Snyman C.R: 2008): (1) the origin of the situation of emergency: Private defence always stems from an unlawful (and therefore human) attack; necessity, on the other hand, may stem either from an unlawful human act, or from chance circumstances, such as natural occurrences. (2) the object at which the act of defence is directed: Private defence is always directed at an unlawful human attack; necessity is directed at either the interests of another innocent third party or merely amounts to a violation of a legal provisio: E.G: X, who has a gun, tells Y that he kidnapped Y's daughter and orders Y, the bank manager, to use his code to open the safe of the bank and to hand him all the money inside the safe. If Y does not do what he says he, X will kill his daughter. If Y hands him the money he will be harming the bank and therefore act in necessity. If he takes his own gun and shoot X because he knows that X lied and that his daughter is safe, he will be acting in private defence to protect this own and the interest of the bank. The distinction between necessity and private defence is also illustrated by the requirements for the successful plea of the grounds of justification (necessity and private defence). These requirements are described below: NECESSITY
A person acts out of necessity - and her conduct is therefore lawful - if she acts in the protection of her own or somebody else's life, physical integrity, property or other legally recognised interest which is endangered by a threat of harm which
Often in practice, necessity and private defence has always been confused. Discuss the fundamental differences between the two.
DISCUSSION
The two grounds of justification known as necessity and private defence are closely related. In both cases the perpetrator protects interests which are of value to her, such as life, physical integrity and property, against threatening danger. The distinctions between these two grounds of justification are the following (Snyman C.R: 2008): (1) the origin of the situation of emergency: Private defence always stems from an unlawful (and therefore human) attack; necessity, on the other hand, may stem either from an unlawful human act, or from chance circumstances, such as natural occurrences. (2) the object at which the act of defence is directed: Private defence is always directed at an unlawful human attack; necessity is directed at either the interests of another innocent third party or merely amounts to a violation of a legal provisio: E.G: X, who has a gun, tells Y that he kidnapped Y's daughter and orders Y, the bank manager, to use his code to open the safe of the bank and to hand him all the money inside the safe. If Y does not do what he says he, X will kill his daughter. If Y hands him the money he will be harming the bank and therefore act in necessity. If he takes his own gun and shoot X because he knows that X lied and that his daughter is safe, he will be acting in private defence to protect this own and the interest of the bank. The distinction between necessity and private defence is also illustrated by the requirements for the successful plea of the grounds of justification (necessity and private defence). These requirements are described below: NECESSITY
A person acts out of necessity - and her conduct is therefore lawful - if she acts in the protection of her own or somebody else's life, physical integrity, property or other legally recognised interest which is endangered by a threat of harm which